Amberson Marten, C.J.
1. The plaintiff here sues for possession under a rent-note. The defence is that the rent-note is only a part of other documents forming one transaction, and that if all the documents are looked at, it will be found that the transaction was an illegal one inasmuch as it amounted to an alienation of an unrecognised sub-division of a bhag contrary to the express provisions of Section 3 of Bombay Act V of 1862. The plaintiff retorts that the defendants being tenants under the rent-note are estopped under Section 116 of the Indian Evidence Act. Accordingly, issue No. 1 was raised on that point, viz., 'Whether it is open to the defendants to raise the plea about the void nature of the transaction and about its having been passed for interest without first surrendering possession to the plaintiff.'
2. In the trial Court the learned Subordinate Judge decided that issue in the negative. Consequently, the evidence which the defendants wanted to adduce in support of the remaining issues was shut out, except to this limited degree that by some blunder the plaintiff's pleader allowed certain mortgages which formed part of the documents relating to this transaction to be let in in evidence, although, strictly speaking, having regard to his plea of estoppel, he ought to have objected to their being exhibited. But when the defendants tendered other documents to show that the suit property was an unrecognised bhag and tendered other evidence in support of their defence, this was rejected.
3. The lower appellate Court reversed the decree of the trial Court, and remanded the case for a decision on the merits. The alleged landlord appeals. A preliminary objection is taken by the alleged tenants that no appeal lies. But we think that here the case was decided on a preliminary point within the meaning of Order XLI, Rule 23, and that consequently an appeal lies to us under the provisions of Order XLIII, Rule 1 (u).
4. Next, as regards the present appeal itself, we think the point of law as to estoppel raised by issue No. 1 should be determined on the same basis as if the above mortgages had not in fact been admitted in evidence, but had been tendered and rejected by the trial Judge. On that basis we think that, as the defendants were contending that the documents they tendered were part of one and the same transaction as the suit rent-notes, and that the transaction when viewed as a whole was an illegal one and was expressly prohibited by the Bhagdari Act, they were entitled to have an opportunity of adducing that evidence. It must be remembered here that the alleged landlord never got possession, as the alleged tenants were in possession from first to last. There is no evidence that the alleged tenants have paid any rent, and consequently everything depends on these alleged rent-notes as to whether they effectually create the relationship of landlord and tenant between the parties. But, having regard to the defence of illegality, this is a case not necessarily of disputing so much a landlord's title as raising a defence that the whole transaction is an illegal one under the law of the land.
5. That being so, different considerations apply from those in which in the ordinary course a tenant is estopped from disputing his landlord's title. For instance, in Laxmanlal v. Mulshankar I.L.R. (1908) 32 Bom. 449 to indemnify a pleader against any loss which he might suffer under a bail bond, a nominal sale-deed and a nominal rent-note were passed by the defendant to the plaintiff. The plaintiff subsequently brought a suit on the rent-note, but it was dismissed on the ground that the consideration for the sale-deed was 'opposed to public policy, and was void under the Indian Contract Act. It was further held that as the sale-deed and rent-note, which latter was merely intended to secure interest on the principal sum, were part and parcel of one single transaction, the rent-note was tainted with the same illegality as that which affected the sale-deed, and was, therefore, also void. In dealing with the question of estoppel at p. 454 it was said:-
Next it was urged that the defendant was estopped under Section 116 of the Evidence Act from pleading the true facts, inasmuch as he was a tenant of the plaintiff. But this, it seems to us, begs the whole question which is simply whether there was a valid tenancy or not.
6. Then again, in Shridhar Balkrishna v. Babaji Mula I.L.R. (1914) 38 Bom. 709 which was a Khoti case, and where certain transactions were entered into in breach of the Act, Mr. Justice Beaman said (p. 714) :-
There is no estoppel against an Act of Parliament or in this country against an Act of the Legislature. It is to be remembered that the transfer or resignation and the lease were made at the same time and formed parts of what is virtually one transaction. If the transfer is found to be tainted with any illegality as being in contravention of any provision of the Statute law the letting must go with it.
7. Then, in Javerbhai v. Gordhan (1914) 17 Bom. L.R. 259 which was a decision of Sir Basil Scott and Mr. Justice Batchelor on this very Act, viz., the. Bhagdari Act, there was a mortgage and also rent-notes, and it was held that the mortgage as well as the rent-notes were void under the provisions of the Act in question. And the judgment says (p. 265):-
The rent-notes were, we think, part and parcel of the one indivisible transaction ; they are, therefore, tainted with the illegality which affects the mortgage, and they must suffer the same fate. We hold that both the mortgage, and the rent-notes are void.
8. For the appellant a decision of Sir Norman Macleod and Mr. Justice Heaton in Devidas v. Shamal, (1919) 22 Bom. L.R. 149 on the same Act was strongly relied upon. It was there held that the tenants under the rent-note were estopped despite the fact that there was a lease which, it was argued, was void under the Act. But, as I read the case, it does not seem to me clear that the point to which we attach importance in this case was clearly negatived by the judgments in that case. I notice that, so far as Sir John Heaton was concerned, he founded his decision on the facts of that case, viz., (p. 153):-
The defendant was in the position of a tenant, ... that he was placed in possession of this land by the person, the plaintiff, who purports to be the landlord, and his possession since then has been continuously possession of a tenant under a landlord.
9. Now, here, if the tenants had been placed in possession by the alleged landlord of the property and had been paying rent and so on for a series of years, it may be that in law different considerations would arise. But, speaking for myself, I am far from being satisfied that the facts of this case are really similar to those in Devidas v. Shamal. But if, and so far as they are similar, then, speaking for myself, I prefer the reasoning and the principles Laid down in the earlier cases to which I have referred, than those in Devidas v. Shamal.
10. It was argued that the suit rent-note was not the original rent-note which was given at the time of the original mortgage, and that, accordingly, it is not open to the defendants to treat the case on the latter basis. That will be a question of evidence. The case that the defendant wants to prove, and tenders evidence to prove, is that at the date of this rent-note there was a contemporaneous mortgage, and that a part of the arrangement was that that first rent-note which was for one year was to be succeeded the nest year by a similar rent-note and so on, and that the third rent-note is in fact similar in pursuances of that understanding or agreement. If he succeeds in proving that, then, for all intents and purposes, the suit rent-note is in the same position as the rent-note at the date of the mortgage.
11. After all it must be remembered that this Court does not favour devices to evade the strict prohibitions of the legislature, and if we were to hold that passing successive rent-notes every year instead of passing one rent-note for a long term of years would evade the Act, we should be opening an extremely easy door to the fraud on the Act which the present plaintiff is alleged to have effected.
12. Giving, then, our best consideration to this case, we think that the decision of the lower appellate Court was correct, viz., that the first issue raised in the trial Court should have been answered 'Yes', and that consequently the lower appellate Court was correct; in remanding the case for a decision on the other issues raised in the case, viz., issues Nos. 2, 3 and 4.
13. But to guard against any misunderstanding we are not deciding that it is open to the defendants to raise now any plea they like against the title of their landlord, or against the suit rent-note. All we are deciding is that they are entitled to adduce evidence in support of issues Nos. 2, 3 and 4 so as to show that the suit rent-note was part and parcel of an illegal transaction under the Bhagdari Act. Whether, when they adduce that evidence, they will prove their case or not is a matter for the trial Court to determine.
14. Accordingly this appeal will be dismissed with costs.
15. I agree.